Selected Usages

Recently I received the following from longtime reader Jeff Wheeler: Here’s a little timewaster of an article that nonetheless got me pondering a drafting question: http://lifehacker.com/lets-end-the-gif-jif-pronunciation-debate-right-now-1796419121. After pondering the relevance of weightier debates to this one, the author seems to conclude there’s no objectively correct answer or superior argument to be made for one pronunciation versus the other, and advises that … Read More

[Updated 2 Jan. 2022: For a court that disagrees with Reyes as it applies to the TCPA, see Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578, 595 (M.D. Tenn. 2018).] Thanks to this post by Eric Troutman on Dorsey’s Consumer Financial Services Update, I learned about Reyes v. Lincoln Automotive Financial Services, No. 16-2104-CV, 2017 WL 2675363 (2d Cir. June 22, … Read More

A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts. I don’t understand excluding … Read More

It’s another wild night chez Adams. As you might have figured out, I’m reassessing the whole efforts thing. I just banged out the chart above, as a way of showing the main permutations of efforts provisions. It’s a wild world of efforts. The chart doesn’t even cover it all, as you can have the modifier following efforts, as in efforts in … Read More

In this post yesterday I offered a limited critique of Chief Justice Strine’s dissent in Williams Companies, Inc. v. Energy Transfer Equity, L.P. But one benefit of having a traditionalist contract-drafting notion rear its head periodically is that it forces me to keep refining my arguments. So in this post I explain in greater detail why it makes no sense to suggest that … Read More

Well, here’s something I didn’t expect: that I would wade in again on efforts, and in a back-to-basics way. On 23 March, the Delaware Supreme Court issued its opinion in Williams Companies, Inc. v. Energy Transfer Equity, L.P. (here). I won’t mention the broader details of the opinion. Instead, I’ll limit myself to what it and some related discussion have to say … Read More

Behold the following: The Sponsor hereby represents and warrants to BNY Mellon, which representations and warranties shall be deemed to be continuing, that: … I’ve seen this provision in different kinds of contracts, notably lending agreements. But I haven’t found any commentary about it. And I don’t believe it’s mainstream in M&A. Here’s how a related concept is usually expressed in M&A … Read More

Can’t we do better than et seq.? Here’s the Black’s Law Dictionary definition: et seq. (et sek) abbr [Latin et sequens “and the following one,” et sequentes (masc.) “and the following ones,” or et sequentia (neuter) “and the following ones”] (18c) And those (pages or sections) that follow <11 USCA §§ 101 et seq.>. And here’s an example from EDGAR: … Read More

The phrase among other things is usually benign, because usually it’s used to refer to something treated fully elsewhere—for example, in the same contract (the first example below) or in another contract (the example under it). Attached as Appendix A is an amended and restated Schedule B to the Subadvisory Agreement setting forth, among other things, the fee that the … Read More

I’m in the process of revisiting the concept of “misapplied” terms of art, which I discuss in MSCD chapter 1. The idea is that it doesn’t make sense to use doctrinal terms of art in contracts if simpler terminology is available. Today’s candidate for a misapplied term of art is the noun subrogation (and the verb subrogate). Here’s the Black’s Law … Read More